I practice law -- criminal defense, civil liberties, and academic freedom/student rights cases. I'm a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America's Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. I live in Cambridge, Massachusetts with my wife, Elsa Dorfman, a portrait photographer.

Black and Whitey: How the Feds Disable Criminal Defense

Two remarkable legal proceedings are currently wending their way through the federal criminal courts. The cases involve very

different parties: Conrad Black, one of the most consequential public intellectuals and businessmen of our era, and James “Whitey” Bulger, a Boston-based alleged racketeer and serial murderer. But both cases highlight some ofthe sameprofound problems with the way federalprosecutorial business is donethese days.

In both cases, as in countless others, the feds have used certain techniquesthat virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violentdrug dealer and the white collar defendant, indifferent tothe niceties of “due process of law,” particularly the right toeffective assistance of legalcounsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors willfirst freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant’s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense.

Prior to 2004 Conrad Black was a columnist, as well as chairman and chief executive of Hollinger International (nowpart of Sun-Times Media Group), a newspaper publishing giant whose holdings include the Chicago Sun-Times and the Daily Telegraph.He remains a highly regarded historian and author. In a case of enormous (and unnecessary) complexity, the Securities and Exchange Commission and the Department of Justice went after him on the basis of a dubious and controversial theory that in arranging the sale of Hollinger’s assets, he finagled and structured thedeal so as topersonally receive a larger share of the proceeds than his ownership percentage entitled him. Rather than test their theory by filing a civil lawsuit on behalf of the minority shareholders, the feds brought an indictment running 75 pages, with 15 complex counts. After many years of litigation and several partially successful trips to the Supreme Court, Black found himself still convicted on two criminal counts, for which he served 42 months in prison.

It is quite possible that Black might have totally prevailed in his case, unnecessarily obscure and complex though it was, had he been able to employ from start to finish his initial legal counsel of choice: the fabled Washington, D.C. firm of Williams & Connolly, which had been representing him with considerable vigor in the pre-indictment stages. But the DOJ did what it routinely does in well-defended cases brought against well-heeled targets: it froze the bulk of Black’s considerable assets, including the $9 million proceeds from the sale of his New York apartment that Black had specifically allocated for his legal defense. Black could no longer fight utilizing his “A” team.

After Black had exhausted his last appeal to the Supreme Court, and after he was finally released from prison, the courts dissolved the asset freeze, and Black found himself once again in a position to employ a top-flight legal team. He and his lawyers-of-choicebrought an innovative legal attack on his conviction, claiming that the improper asset freeze had deprived him of the constitutionally-guaranteed effective legal counsel of his choice. To raise the issue at such a late date, Black’s lawyers, the highly regarded Cleveland-based firm BakerHostetler, relied upon an ancient but rarely used common law-based procedure known as a petition for a writ of error coram nobis—the same procedure used in 1983 by Fred Korematsu to declare the World War IIrelocation of Japanese-Americans (including Korematsu himself) unconstitutional.

Meanwhile, in Boston, Whitey Bulger was having similar problems. A reputed mobster with a long history of violence, Bulger was captured in California in June 2011, rousted from his apartment where federal agents found an arsenal of illegal weapons and $800,000 in cash (which, importantly, had not been traced to any identifiableillicit activity) hidden behind a wall. Bulger was wanted in Oklahoma and Florida state courtsfor murder. In addition, the federal court in Boston charged him with racketeering, in two separate,sprawling indictments, one from 1994, and one from 1999. The 1999 indictment alsosubsumed 19 alleged murders.

Without muchdoubt, the 1999 Boston indictment would have been the most difficult, complex and expensive case for Bulger to defend against. Yet the feds chose to proceed on this case and dropped the 1994 indictment. As with Conrad Black, they froze all of Bulger’s assets, including the cash found behind the wall. Bulger had to satisfy himself with a court-appointed lawyer. It happens that the appointed lawyer was someone of considerable reputation and experience, but the feds neutralized the appointed lawyer’s skill by pouring more than 360,000 pages of disorganized documents onto him.

The federal magistrate and the judge have been very spare in their granting adequate relief to Bulger’s lawyer in terms of time and resources needed to organize and study the mountain of documents. While the Sixth Amendment to the Constitution provides that “the accused shall enjoy the right to a speedy . . . trial,” the courts have twisted the law by claiming that the public, including Bulger’s alleged victims, have a similar right. This, then, is used as an excuse to rush Bulger to trial before his rather skimpy legal team can be fully prepared.

Thus, Bulger will ultimately encounter much the same disability as Black: an inability to put up a fair fight in a case of unnecessary complexity defended against by a legal team inadequately equipped for the task because of a lack of sufficient time and resources.

These techniques are the rule, not the exception, when the Department of Justice really wants to win a case. When federal drug enforcers decide to go after physicians who recommend drugs for the alleviation of chronic pain in quantities or for conditions that roam outside of drug warriors’ notions of the “good faith” practice of medicine, they indict the doctors under statutes aimed at drug dealers, then freeze their bank accounts.

I wrote in my 2009 book, Three Felonies a Day: How the Feds Target the Innocent, about the 2006 prosecution of Dr. Peter Gleason, who was targeted for touting the benefits of the drug Xyrem for a number of medical conditions beyond what the U. S. Food and Drug Administration (FDA) approved. His assets frozen, Dr. Gleason, represented by an appointed Federal Defender, pleaded guilty to a reduced charge in a plea bargain. Gleason expressed anger at having to drop his fight, assuring me of his innocence (assurances I examined and accepted) until February 7, 2011, when, worn out by the battle, he committed suicide. (The U.S. Court of Appeals later ruled, in the case of Dr. Gleason’s co-defendant, that the FDA’s application of its regulations was unconstitutional.)

When corporate executives are investigated and charged, the Department of Justice has been known to pressure their employer corporations to refuse to live up to contractual agreements to pay attorneys’ fees for indicted executives. This practice was immortalized in a series of Department of Justice directives, one of which, signed June 16, 1999, is known as the “Holder Memorandum”in honor of its drafter, the current attorney general, at that time the deputy attorney generalin charge of the Criminal Division at the DOJ. (In 2006, United States District Judge Lewis Kaplan in Manhattan declared the DOJ’s practice unconstitutional, a decision affirmed by the Second Circuit Court of Appeals. Judge Kaplan wrote that the corporation only “refused to pay because the government held the proverbial gun to its head.”)

Federal prosecutors, in contrast to most of their targets, operate on the basis of munificent funding (even if the money is borrowed by the government). They invariably have more resources than all but a tiny number of defendants. But this advantage is significantly magnified when a defendant’s assets are frozen just as he seeks adequateand effectivedefense counsel to handle massive document dumps and overwrought indictments.

Lord Black’s coram nobis petition (his title derives from his membership in the British House of Lords) is being closely followed around the country, as is Whitey Bulger’s more sensational prosecution. Both cases, along with hundreds, if not thousands, of other federal prosecutions currently lodged in the bloated federal criminal justice system, raise the question of whether the federal Constitution, which supposedly guarantees defendants a fair trial, prohibits the feds from bringing unnecessarilycomplex charges and then financially disabling defendants from engaging in a fair fight. Hinging on the answer to that question is nothing less than a defendant’s chance atan accurate outcome dictated by the facts and the law.

(The research and editing assistance of paralegals Juliana DeVries and Zachary Bloom is gratefully acknowledged.)

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This is part of the reason I’d like to see ‘loser pays’ applied to not just civil suits but also criminal cases. Even if prosecutors froze the defendant’s assets, the attorney would have a path to getting paid if the prosecutors can’t prove their case.

Another tactic used by the Fed’s is to prosecute under the RICO statutes in order to get a plea bargain. The Fed gives you the option of taking a lighter sentence or go to trail with the ‘chance’ of getting 50 years in prison. Michael Milken for instance was given the “option” of taking a chance of being sentenced to 100 years in prison or a negotiated plea of 3 years. No one can take the chance and the Fed’s know it, Milken took the plea bargain. Most of the “junk bond” deals that Milken put together are still doing a lot better than most, compare his returns to any made during the time period.

Don’t forget to couple this prosecutorial abuse with selective enforcement of laws. The new Black Panther Party and David Gregory get a pass but Nakoula Basseley Nakoula sits in jail for a parole “violation” that most folks see more correctly as revenge for his “Innocence of Muslims” video.

Lord Black had the handicap of belonging to a currently hated segment of society, the rich. It did Senator Stevens no good to be a member of Congress of long standing when the hostile Justice Department decided to take him down. The laws seem to be more elastic these days, especially when one is a Republican, like Scooter Libby or Senator Stevens. Even Lord Black shared that political handicap.

It was found that after Senator Stevens died in a plane crash that the prosecutors had lied by ommission. They had hidden information that would have exonerated the Senator. We are now having “Star Chamber” proceeding with out realizing it, we have some ‘trials’ akin to those in Moscow in 1939.

You think this only goes on at the Fed level? This game is played at EVERY level of prosecution — county and state. Our judicial system is rigged — the only way to handle that is to avoid it if you can. And your book, “3 felonies a day” makes it very clear that that is hard to do. We are one gun ban away from a Stalinist government.